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holding that wife had authority to consent to search of computer in husband's home office, and husband had no reasonable expectation of privacy
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CAUSE NO. IP 03-4-CR-1 H/F
May 1, 2003
ENTRY ON PENDING MOTIONS
Defendant Henry Politi has been indicted for receiving and possessing child pornography from February 20, 1999 to May 20, 1999. Politi has moved to suppress any evidence, including any statements he made, obtained during a warrantless search of his residence on May 20, 1999. Politi contends that the evidence was obtained in violation of his Fourth and Fifth Amendment rights to the Constitution. Politi has also moved to dismiss the charges on double jeopardy grounds and to have the court order the government to show cause for its delay in seeking and obtaining the indictment against him.
Actually, Politi argued in his brief that officers violated his Fourth and Fourteenth Amendment rights, but the relevant portions of the Fourteenth Amendment apply to the states, not to the federal government.
The court held an evidentiary hearing on April 9, 2003 and the parties submitted post-hearing briefs. This entry sets forth the court's findings of fact and conclusions of law pursuant to Fed.R.Crim.P. 12(d). As explained, Politi's motion to suppress and the other two motions are all denied.
Findings of Fact I. The Sting
In an attempt to identify individuals who receive and possess child pornography, the United States government set up a website and business under the name "Caribe Imports, Ltd." Caribe Imports advertised over the internet that it had child pornography. After expressing interest in the website, Politi received a form from Caribe Imports that asked him to indicate the types of products in which he might be interested. Politi filled out the form indicating an interest in child pornography, and mailed it back to Caribe Imports. He later received a catalogue of products from the company. Politi then ordered a video, the title of which indicated that it would likely contain child pornography.
On May 20, 1999, law enforcement agents conducted a controlled delivery of the video that Politi had ordered to his residence (103 Lions Creek Court South, Noblesville, Indiana). United States Customs Agent Chris Matarelli, dressed as a Federal Express delivery person, knocked on Politi's door. Mrs. Angelyn Politi answered the door. Agent Matarelli said he had a package for Henry Politi that required his signature. Politi was in bed sick but eventually came to the door and signed for the package.
At this point, the evidence is unclear as to whether the videotape delivered by the government was actually prohibited child pornography and as to how or by whom it was originally produced.
Half an hour later, law enforcement officers in plain clothes again knocked on the door of the Politi residence. The officers did not have a search warrant. They hoped to obtain consent for a search from one of the Politis. Mrs. Politi answered the door and invited the agents in after they identified themselves and showed their badges to her. Upon hearing people enter his home, Politi also came to the door. At this point the agents asked if they could speak with Politi and his wife separately. The Politis agreed.
The exact marital status of Henry and Angelyn Politi in May 1999 is not clear from the record. The court heard evidence that the Politis had lived together at the above address for several years and appeared to be married when these events occurred. The only evidence the court has about the Politis' marital status is testimony to the effect that the Politis had been previously married and divorced and are currently married. The dates are not in the record.
II. Consent to Search
Agents Matarelli and Rothrock spoke with Politi in his home office, which was the second bedroom of the apartment, while Indiana State Police Sergeant Chris Hunt and Postal Inspector Steve Sadowitz spoke with Mrs. Politi in the kitchen. Based on the evidence at the hearing, the court finds by a preponderance of the evidence that Mrs. Politi voluntarily consented both orally and in writing to the search of the apartment during her conversation with the law enforcement officials.A. Angelyn Politi
Sergeant Hunt and Inspector Sadowitz sat at the Politi kitchen table and spoke with Mrs. Politi. During this time, Mrs. Politi was not restrained and she never asked for the officers to leave her apartment. Sergeant Hunt and Inspector Sadowitz were wearing street clothes, and their weapons were not visible when they spoke with her. Sergeant Hunt further testified that their conversation lasted 30 to 45 minutes, and during this time Mrs. Politi spoke and understood English, was coherent and responsive to their questions, and appeared sober.
The officers questioned Mrs. Politi about her access to different rooms in the apartment and her access to the computer in the home office. She told them she had lived in the apartment for several years and had access to all rooms in the apartment and could enter them as she pleased. She also indicated she could have full access to the computer if she wished to use it, and that her husband was teaching her to use it. On this point, Sergeant Hunt's testimony was consistent with the testimony of both Angelyn and Henry Politi, who both testified that Henry had tried to teach Angelyn to use the computer but that she was not interested in learning to use it.
The officers also informed Mrs. Politi that they believed child pornography was in the house and that they wanted to search for it. According to Sergeant Hunt, whom the court credits, Mrs. Politi stated that there was no child pornography in her home and that she did not want it in her home. Mrs. Politi then told them to go ahead and search within the first five to ten minutes of their conversation. Mrs. Politi read, understood, and signed a consent to search form specifying her authorization for the officers to search her apartment and the items to be seized. Gov. Ex. 4. The consent form stated the address of the Politi residence and authorized law enforcement officers to take any "child pornography video tapes, computers computer related equipment, documents, records, receipts, photographs, negatives, images, computer printouts, or any other related materials." Id.
When presented with a copy of the consent form at the hearing, Mrs. Politi exclaimed immediately and without a question pending: "I don't remember him having all this filled in!. . . . I signed an empty [form]!" Mrs. Politi further testified that she never saw nor was told that she had the right to withdraw her consent, despite the fact that the phrase was pre-printed on the consent form. According to Mrs. Politi's testimony, the officers told her they would get a warrant and "knock down [her] door and push in [her] walls" if she did not consent. On these points, Mrs. Politi's version of the facts is not credible. In implying that the consent form was either forged or blank when she signed it, Mrs. Politi took a position contrary to that of defense counsel, who did not object to the document's admissibility. The court finds it highly unlikely that the officers forged her signature or tricked her into signing a blank form. Also undermining her credibility, Mrs. Politi flatly denied that Sergeant Hunt was even present at her house that day, proclaiming: "Are you sure there was an African American there? Wouldn't I have noticed it?" The credibility of Mrs. Politi's testimony regarding her consent was further diminished by her behavior and the demonstrative conduct of both counsel and defendant during her testimony, which gave the court the strong impression that her testimony on these points was being coached or at least encouraged.
Mrs. Politi's actions in her home spoke louder than her words in the courtroom. During her testimony, she repeatedly stated how nervous and scared she had been that day, implying that she consented to the search only because she was terrified. Yet Mrs. Politi's own account of her actions that day does not portray the terror or intimidation she claimed to have experienced. For instance, she testified that she was cleaning dishes in the kitchen before the officers arrived, and that after she authorized the law enforcement officials to search the apartment, she went back to doing the dishes. She also described the "conversation" she had with a familiar Noblesville police officer during which they both sat at the kitchen table. Finally, at the prospect of having her house searched, Mrs. Politi was concerned about what her neighbors would think, stating sarcastically: "All my neighbors will know — thrilling." These were not the actions of a person paralyzed by fear, but of a person who understood the significance of the events unfolding around her and who made a choice to consent.
Mrs. Politi, however, did testify that after she signed the consent form, she told law enforcement officials to "search all you want" because she had nothing to hide. The court credits this testimony; it is consistent with the testimony of Sergeant Hunt.
B. Henry Politi
Although the evidence shows that Mrs. Politi authorized the officers to search the Politi apartment for child pornography, the evidence also shows that Henry Politi did not. Agents Matarelli and Rothrock questioned Politi in his home office about who had access to the different rooms in the apartment and the computer in the office. Politi told the agents that both he and Mrs. Politi had access to all of the rooms in the apartment. With respect to the computer, Politi told the agents that he had purchased the computer and that the files on the computer were his. See Def. Ex. 102. However, Politi also stated that he wanted Mrs. Politi to learn to use the computer and that he had tried to teach her but she was not interested. The agents also questioned Politi about child pornography and whether he used the internet to search for child pornography.
An examination of the computer later revealed that the computer required no password for use or for viewing images saved on the computer.
Early during these conversations, the agents read Politi a statement of rights that was printed on a U.S. Customs form. Politi then signed the form, indicating that he had been read his rights and that he understood his rights. Gov. Ex. 2. Politi testified, however, that he never signed the Statement of Rights form that the government introduced into evidence. Politi testified that he told the agents that he wanted to see his attorney, that he did not know his rights, and that he wanted to see a search warrant. Regarding the Statement of Rights form, the court credits Agent Matarelli's version of the facts. First, the Statement of Rights form was introduced into evidence without any objection to the document's authenticity by the defense. Second, it is highly unlikely that the agents would have forged a Statement of Rights form, especially since they were not even required to read Politi his rights under these circumstances, as discussed below. Rather, it is most likely that the agents gave the form to Politi after his statement about wanting to see his attorney.
Politi testified that during their conversation, the agents were "correct and formal" with him, that they never raised their voices at him, and that he was neither handcuffed nor physically restrained during their conversation. Politi further testified that no guns were brandished and that he never asked the officers to leave.
After initially questioning Politi in his office, and after obtaining Mrs. Politi's consent to search the apartment, the agents moved Politi to his bedroom, where the door was closed but not locked. Politi stayed alone in the bedroom for approximately thirty minutes. During this time, Politi did not contact his attorney, despite the fact that there was a telephone in the bedroom and that he had told the officers he wanted to speak with his attorney.
Politi eventually left the bedroom and spoke with Noblesville Detective Dave Underwood at the kitchen table. Politi knew Detective Underwood and felt comfortable speaking with him. Politi never told Detective Underwood that he felt scared. Angelyn and Henry Politi later left the apartment upon the request of the law enforcement agents. It was at that time that Henry Politi learned that his wife had authorized the officers to search the apartment and that he attempted to contact his attorney.
Conclusions of Law I. Motion to Suppress A. Authority to Consent
Politi's principal challenge to the search of his apartment is that Angelyn Politi lacked the authority to consent, either because she did not have access to the entire apartment, including the computer, or because she was not the target of the investigation. These arguments are not persuasive.
Mrs. Politi had both actual and apparent authority to consent to the search of the Politi apartment, including the computer in the home office. Generally, "one spouse has the authority to consent to a search of the premises jointly occupied by both spouses." United States v. Duran, 957 F.2d 499, 503 (7th Cir. 1992), citing United States v. Matlock, 415 U.S. 164, 170 (1974). The Seventh Circuit has held that a spouse is presumed to have "authority to consent to a search of all areas of the homestead." Duran, 957 F.2d at 505. "[T]he nonconsenting spouse may rebut this presumption only by showing that the consenting spouse was denied access to the particular area searched." Id. Thus, authority depends upon one's access to the subject of the search, not actual use. See id., at 503, 505 (wife had authority to consent to search of separate building that husband used as a gym, which the wife did not use but had access to, for "[o]ne can have access to a building or a room but choose not to enter.").
The evidence demonstrates that Mrs. Politi had actual authority to consent to a search of the apartment, including the home office and the computer located there. The testimony of Sergeant Hunt, Angelyn Politi, and Henry Politi, who were consistent on this point, showed that Mrs. Politi had access to all rooms in the apartment and could enter as she pleased. Their testimony further showed that although Mrs. Politi chose not to use the computer, she could have used it if she had chosen to do so. Accordingly, Mrs. Politi had actual authority to consent under Duran.
Even if Mrs. Politi had not had access to the home office and/or computer, her consent to the search would still have been valid under the apparent authority doctrine. The law enforcement officials reasonably believed she had the authority to consent to the search. See Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); see also United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000); Wayne R. LaFave, Criminal Procedure § 3.10(e), at 316 n. 126 (2d ed. 1999) (collecting cases). According to the testimony of Sergeant Hunt and Agent Matarelli, law enforcement officials believed that Henry and Angelyn Politi were married at the time and that both had access to the entire apartment, including the computer. There is no evidence undermining the reasonableness (or even the accuracy) of that belief.
The outcome is not changed by the fact that Henry Politi was the target of the investigation and refused consent. The defendant's objection to a search is irrelevant if another authorized party consents. United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977); United States v. Hendrix, 595 F.2d 883, 885 (D.C. Cir. 1979); see also United States v. Aghedo, 159 F.3d 308, 310-11 (7th Cir. 1998) (finding lessee had authority to consent to search of her guest's room when guest was target of investigation). In Sumlin, a case that presented nearly identical facts, the court found that a female companion who lived in the apartment had the authority to consent to a search despite the defendant's initial refusal. The court reasoned:
There is no reasonable expectation of privacy to be protected under such circumstances. We cannot see how the additional fact of Appellant's initial refusal to consent in any way lessened the risk assumed that his co-occupant would consent. This additional fact does not increase a reasonable expectation of privacy.
Sumlin, 567 F.2d at 688; accord, J.L. Foti Const. Co., Inc. v. Donovan, 786 F.2d 714, 716-17 (6th Cir. 1986) (general contractor could give valid consent for OSHA search of work premises, despite subcontractor's refusal to consent). The reasoning of Sumlin applies squarely to the facts here.
B. Voluntary Consent
When Angelyn Politi gave her consent to law enforcement officers to search the Politi apartment on May 20, 1999, she did so voluntarily. The determination of "whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); see also United States v. Drayton, 536 U.S. 194, 196 (2002) (validity of consent determined by the totality of circumstances without any extra weight being given to whether the individual was informed of his or her right to refuse to consent). Examination of the totality of the circumstances includes consideration of factors such as "age, education, and intelligence of the defendant; advisement of his rights; how long he was detained prior to the consent; repeated requests for consent; physical coercion; and whether he was in custody." United States v. Taylor, 196 F.3d 854, 860 (7th Cir. 1999), quoting United States v. LaGrone, 43 F.3d 332, 334 (7th Cir. 1994).
The totality of the circumstances demonstrates that Mrs. Politi voluntarily consented to a search of her apartment and that her consent was not coerced or the product of duress. The evidence at the hearing showed that Mrs. Politi and law enforcement officers sat around a kitchen table in an open room. Mrs. Politi was neither cuffed nor otherwise physically restrained. The officers wore street clothes and their weapons were not visible. While seated around the table, the officers asked Mrs. Politi various questions about her access to the rooms of the apartment and the computer located in the second bedroom. Her answers to these questions indicated that she spoke English, was coherent, and understood the questions being asked. Upon hearing that the law enforcement officers were looking for child pornography, Mrs. Politi denied that there was any in her home and told the officers to "search all you want" because she had nothing to hide. That consent was given within the first five to ten minutes of her conversation with law enforcement officials. Mrs. Politi also signed a consent form that indicated she could withdraw her consent. The consent for stated: "This written permission is being given by me to the above named persons freely and voluntarily without threats, promises, or coercion of any kind . . ." Gov. Ex. 4. This evidence shows that Mrs. Politi made a voluntary choice to cooperate with law enforcement officials when she permitted them to search her apartment.
As the United States points out, the Seventh Circuit has found that consents to search were given voluntarily under circumstances that posed a far greater risk of coercion than was present here. In Duran, the court found that a wife's consent to search her husband's gym was voluntary when she signed a consent form that contained warnings about her rights, even though she was being held in custody at the police station at the time she signed the form, she was upset, and she was told by officers that they would obtain a search warrant if she failed to consent. United States v. Duran, 957 F.2d 499, 502-03 (7th Cir. 1992). In finding that the wife's consent was voluntarily given, the court noted that the "potentially coercive effect of her custody, however, was mitigated by the circumstances; [she] was arrested during the day and without a show of force, was not kept under close restraint at the station, and was not subject to an aggressive display of weaponry, and was not harshly interrogated — in fact, [she] characterized [the officer's] conversation with her as `gentlemanly.'" Id.
Only the mitigating factors the court described in Duran are present here. Thus, Mrs. Politi's consent was voluntarily given. See also United States v. Taylor, 196 F.3d 854, 860 (7th Cir. 1999) (consent to search was voluntarily given where defendant admitted he was never threatened, despite the fact that he was handcuffed at the time and in custody); United States v. LaGrone, 43 F.3d 332, 334 (7th Cir. 1998) (finding consent to search voluntarily given when defendant was held in custody for less than 15 minutes and was asked to consent more than once); United States v. Navarro, 90 F.3d 1245, 1256 (7th Cir. 1996) (consent to search was voluntary when it was given in a "calm and relaxed" atmosphere and defendant had signed a consent form that stated "I sign this form freely and voluntarily," despite defendant's claim that he did not understand English well); United States v. Saddah, 61 F.3d 510, 518 (7th Cir. 1995) (finding consent to search voluntarily given where defendant had told officers she had nothing to hide and signed a form that indicated "I have not been threatened nor forced in any way . . . I freely consent to this search").
Defense counsel questioned Officer Hunt at length about the decision of law enforcement officers to try to obtain consent first before seeking a search warrant. Seeking consent to search is not a disfavored law enforcement practice. Wayne R. LaFave, Criminal Procedure § 3.10(a), supp. at 48 (2d ed. 1999). As the Supreme Court recently noted in United States v. Drayton:
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding.536 U.S. 194, 207 (2002).
C. Questioning at Politi's Home
When Politi was questioned by Agents Matarelli and Rothrock in his home office, he was not in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). See United States v. Salyers, 160 F.3d 1152, 1159-60 (7th Cir. 1998) (defendant not "in custody" during execution of search warrant at home when he was not restrained and was not told he could not leave); United States v. Fazio, 914 F.2d 950, 955 (7th Cir. 1990) (defendant was not in custody when officers asked him to sit in a particular office in his own restaurant while they executed a search warrant in an adjacent room; defendant was not locked in the room or physically restrained or threatened with weapons). Similarly, Politi was not cuffed or restrained during his conversation with law enforcement officers, and he testified that the officers were "correct and formal" with him during their conversation. He could have ended his conversation with law enforcement officials if he had wished to do so. Instead, he answered the questions posed by law enforcement officials, and even asked some of his own. The fact that law enforcement officers requested to search Politi's apartment does not mean he was interrogated within the meaning of Miranda. See United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993) ("a consent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation," though questions about ownership could amount to interrogation). Because Politi was not in custody, there is no basis for suppressing evidence of any incriminating statements he might have made during his conversation with law enforcement officials.II. Other Pending Motions
Defendant's motion to dismiss the charges against him on the basis of the double jeopardy clause is denied. The criminal forfeiture of Politi's computer does not implicate the double jeopardy clause: "For the double jeopardy clause does not bar cumulative punishments imposed in a single proceeding — whether these punishments be the ordinary combination of prison plus a fine, or consecutive terms in prison, or prison plus a forfeiture." United States v. Torres, 28 F.3d 1463, 1464 (7th Cir. 1994) (similar argument described as "non-starter"), citing Ohio v. Johnson, 467 U.S. 493, 500 (1984), Missouri v. Hunter, 459 U.S. 359, 366 (1983), Albernaz v. United States, 450 U.S. 333, 343-44 (1981), Whalen v. United States, 445 U.S. 684, 693 (1980), and United States v. Masters, 978 F.2d 281, 285 (7th Cir. 1992). Contrary to defense counsel's assertion, Politi may not avoid a possible prison sentence by "choosing" forfeiture as his penalty.
Defendant's motion to require the United States to show cause why the indictment was delayed is also denied. The indictment was returned well within the applicable statute of limitations. The defendant has not made any showing here that the delay after May 1999 caused him "actual and substantial prejudice," which could then trigger the government's burden to provide reasons for the delay. See United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994). Also, there is no indication that the delay in Politi's indictment was the result of bad faith or was for the purpose of gaining a tactical advantage over him. Id. at 450 ("due process is only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith"); see also United States v. Marion, 404 U.S. 307 (1971); United States v. Lovasco, 431 U.S. 783 (1977).
Conclusion
Angelyn Politi had authority to consent to a search of the Politi apartment, including the computer located in the home office. Based on the totality of the circumstances, her consent was voluntary and therefore valid. Henry Politi was not subjected to custodial interrogation. Accordingly, the defendant's motion to suppress evidence of the search, including any statements made by him during the search, is hereby denied. The defendant's motions to dismiss the charges against him and to require the United States to show cause for delay are also denied. Trial remains scheduled for May 12, 2003.
So ordered.